People v. Sutton

• Decision Date: 30 December 1993
• Parties: The PEOPLE of the State of New York, Appellant, v. Kenneth SUTTON, Respondent. The PEOPLE of the State of New York, Appellant, v. John TANCHAK, Respondent. The PEOPLE of the State of New York, Appellant, v. Thomas SCHILLINGER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 408

606 N.Y.S.2d 408

199 A.D.2d 878

The PEOPLE of the State of New York, Appellant, v. Kenneth SUTTON, Respondent.

The PEOPLE of the State of New York, Appellant, v. John TANCHAK, Respondent.

The PEOPLE of the State of New York, Appellant, v. Thomas SCHILLINGER, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 30, 1993.

Richard A. Kohn, Sp. Prosecutor, Albany, for appellant.

Hinman, Straub, Pigors & Manning, P.C. (Paul M. Collins, of counsel), Albany, for Kenneth Sutton, respondent.

William J. Gray, Albany, for John Tanchak and another, respondents.

Before MIKOLL, J.P., and YESAWICH, CREW, WHITE and MAHONEY, JJ.

YESAWICH, Justice.

Appeals (1) from an order of the County Court of Albany County (Turner Jr., J.), entered June 23, 1992, which partially granted defendant Kenneth Sutton's motion to dismiss the indictment against him, (2) from an order of said court, entered July 20, 1992, which granted defendant Kenneth Sutton's motion to dismiss the remaining count of the indictment against him, and (3) from an order of said court, entered June 23, 1992, which granted defendant Thomas Schillinger's motion and dismissed the indictments against him and defendant John Tanchak.

Defendant Kenneth Sutton, a retired City of Albany Police Detective, was indicted for official misconduct (Penal Law § 195.00[1] and harassment (Penal Law § 240.25[1] after an incident in which he allegedly punched and yelled racial epithets at a handcuffed and arrested person. As a result of the same incident, defendants John Tanchak and Thomas Schillinger, also City of Albany Police Officers, were charged with knowingly failing to report Sutton's alleged misconduct, as required by Penal Law § 195.00(2).

Schillinger and Sutton moved to dismiss the official misconduct charges on the ground that the Special Prosecutor erred by instructing the Grand Jury in accordance with Penal Law § 195.00(1) as it stood in May 1989, at the time of the arrest, rather than as amended by the Laws of 1990 (ch. 906). County Court agreed, and in two orders entered June 23, 1992 dismissed both the official misconduct count against Sutton and the allied counts against Tanchak and Schillinger.

Sutton then moved to dismiss the only remaining charge, the harassment count, on the ground that he was not afforded a speedy trial. County Court found, in this regard, that the People had not communicated their readiness for trial within the 90-day period mandated by CPL 30.30(1)(b), and further that they were chargeable with a lengthy period of postreadiness delay resulting from the Grand Jury stenographer's failure to produce a transcript of the Grand Jury minutes. Accordingly, in a third order, entered July 20, 1992, County Court dismissed the remainder of the indictment against Sutton. The People appeal from the three orders entered.

Initially, we note that the 1990 amendment to the official misconduct statute should not have been applied retroactively and that County Court erred in dismissing the official misconduct counts on that basis. Although, in the absence of any evidence to the contrary, the general rule is to permit retroactive application of remedial or ameliorative amendments (see, People v. Behlog, 74 N.Y.2d 237, 240, 544 N.Y.S.2d 804, 543 N.E.2d 69), and the legislative history regarding the amendment at issue arguably demonstrates a remedial intent (see, Donnino, 1993 Supp.Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 195.00, at 115), the explicit postponement of its effective date until November 1, 1990, three months after passage, constitutes some evidence that the amendment was intended to be prospectively applied (see, Matter of Mulligan v. Murphy, 14 N.Y.2d 223, 226, 250 N.Y.S.2d 412, 199 N.E.2d 496). This legislative expression is sufficient to overcome any presumption of retroactivity. Moreover, it is far from clear that this particular change is even entitled to such a presumption, because it essentially decriminalized behavior which had been proscribed by the former statute (see, People v. Oliver, 1 N.Y.2d 152, 161 n. 3, 151 N.Y.S.2d 367, 134 N.E.2d 197). The orders of June 23, 1992 must therefore be reversed and the official misconduct charges reinstated against all three defendants.

Turning to the speedy trial issue, we find no merit in Sutton's assertion that the People did not properly communicate their readiness for trial within the 90 days prescribed by the statute. As observed in People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287, the statutory mandate may be satisfied by "written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record". Here, it is undisputed that Sutton was notified of the prosecutor's readiness by a written communication on or about July 10, 1991, 23 days after his indictment and arraignment. Rather than filing the notice of readiness with the County Court Clerk, however, the Special Prosecutor sent it to County Court's chambers, which is where, he avers, he had earlier been advised by the County ...